16215/90

 AS TO THE ADMISSIBILITY OF Application No. 16215/90 by Hans HESS against Switzerland The European Commission of Human Rights (Second Chamber) sitting in private on 2 December 1992, the following members being present: MM. G. JÖRUNDSSON, Acting President of the Second Chamber S. TRECHSEL A. WEITZEL J.-C. SOYER H. G. SCHERMERS H. DANELIUS Mrs. G. H. THUNE MM. F. MARTINEZ L. LOUCAIDES J.-C. GEUS Mr. K. ROGGE, Secretary to the Second Chamber Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms; Having regard to the application introduced on 29 December 1989 by Hans HESS against Switzerland and registered on 26 February 1990 under file No. 16215/90; Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission; Having deliberated; Decides as follows: THE FACTS The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant, a Swiss citizen born in 1945, is a lawyer residing at Sarnen in Switzerland. At the time of the facts leading to the present application the applicant was also Minister of Justice (Justizdirektor) of the Canton of Obwalden. This was a part-time office. Before the Commission the applicant is represented by Mr. J. Nigg, a lawyer practising in Sarnen. I. In 1980 the applicant represented S., a businessman, in tax matters. For purposes of the Federal Tax (Wehrsteuer) the applicant submitted a declaration of the income of S. for the taxation period 1979/80. For the taxation period 1981/82 the applicant requested the tax authorities to determine the taxes due by S. on the basis of the previous period as he was not able to assess the income and fortune of S. The Obwalden tax authority then determined the taxes "according to their discretion" ("nach Ermessen"). In 1982 S. founded a company providing counselling and other assistance in football matters. Between 1983 and 1985 it apparently obtained licensing fees from the German footballer X. amounting to 1,432,000 DM. On 28 December 1983 the applicant again requested the tax authorities to determine the taxes due by S. for the period 1983/84 "in analogy to the previous taxation period" ("analog der vorangegangenen Steuer-Periode) as he, the applicant, was not able to assess the income and fortune of S. On 27 February 1984 the Obwalden tax authority again determined the taxes "according to their discretion". In 1986 the Federal Tax Administration (Eidgenössische Steuerverwaltung) noted that S. had not paid taxes for the income of his company. It requested the Obwalden tax authority to institute tax evasion proceedings against S., and against the applicant on account of aiding and abetting (Gehilfenschaft) in tax evasion. II. On 19 May 1987 the Obwalden tax authority imposed fines on S. in the amount of 24,000 SFr for the period 1981/82, and 124,000 SFr for the period 1983/84, on account of intentional evasion of federal taxes (vorsätzliche Hinterziehung der Wehrsteuer/direkten Bundessteuer); it also imposed supplementary taxes (Nachsteuern) on S. S. appealed against this order. On 30 November 1987 the Obwalden Tax Appeal Commission for Direct Federal Tax (Steuerrekurskommission für die direkte Bundessteuer) partly upheld the appeal, inter alia as S. had only committed the offence negligently (fahrlässig). Against this decision both S. and the Federal Tax Administration filed further appeals with the Federal Court (Bundesgericht). The Federal Tax Administration claimed inter alia that S. had committed the offences intentionally (vorsätzlich). On 20 June 1989 the Federal Court partly upheld the appeal of the Federal Tax Administration and ordered the Tax Appeal Commission again to decide the case. III. In a separate decision of 19 May 1987 the Obwalden tax authority imposed fines on the applicant in the amount of 24,000 SFr for the period 1981/82, and 124,000 SFr for the period 1983/84. It considered that by not filing tax declarations and other documents the applicant had aided and abetted in the tax evasion by S. The applicant appealed against this decision claiming inter alia that the tax administration had failed in their duties properly to assess the taxes concerned. Moreover, even if S. was to be punished for tax evasion, he, the applicant, could not be found guilty of abetment as he had only acted as a lawyer and had not had insight into the income and fortune of S. On 30 November 1987 the Obwalden Tax Appeal Commission upheld the applicant's appeal and quashed the fines imposed. The Commission found that the offence of abetment in tax evasion presupposed that the main offence had been committed intentionally, yet S. had only negligently evaded taxes for the period 1983/84. In any event, the applicant had himself not acted intentionally for which further reason he could not be accused of abetment. Against the decision of the Tax Appeal Commission the Federal Tax Administration filed an administrative law appeal (Verwaltungsgerichts- beschwerde) with the Federal Court. Therein it requested the Court to fine the applicant 17,800 SFr for the period 1981/82 and 92,000 SFr for the period 1983/84. The Federal Tax Administration recalled that in its separate appeal concerning S. (see above II.) it claimed that S. had acted intentionally, for which reason the applicant could not be acquitted of the offence of abetment. The applicant filed observations on the administrative law appeal of the Federal Tax Administration. He requested in particular to adjourn the proceedings against him pending the outcome of the proceedings against S. He also explained why he had not intentionally abetted in the tax evasion by S. On 20 June 1989 the Federal Court upheld the administrative law appeal of the Federal Tax Administration. The Court found that the applicant had intentionally abetted in tax evasion in respect of the period 1983/84, and referred the case to the Tax Appeal Commission for the determination of the fine to be imposed on the applicant. The decision was served on the applicant on 5 July 1989. In its decision the Court considered inter alia that there was no need to adjourn the proceedings, and to inform the applicant of its decision in the case concerning S., as the applicant had had sufficient opportunity to comment on the circumstances of his case. The Court further considered that the applicant had indeed acted intentionally while being reckless as to the consequences (Eventualvorsatz), in particular when on 28 December 1983 he had requested the tax authorities to determine the taxes due by S. "in analogy to the previous taxation period". COMPLAINTS The applicant complains under Article 6 of the Convention that a person accused of abetment must be granted the right to comment on the principal offence, since abetment will depend on the punishment for that offence. In his case the proceedings concerning the charges relating to the principal offence were conducted before the Federal Court separately. By finding that S. had committed the offence intentionally, the Federal Court had created the basis for the applicant's punishment on account of abetment without the applicant having had the possibility to comment on the other decision. THE LAW The applicant complains under Article 6 (Art. 6) of the Convention that, although his conviction of abetment in tax evasion depended on the outcome of the criminal proceedings instituted against S., he could not comment on the conviction of S. The Commission has examined these complaints under Article 6 paras. 1 and 3 (a) and (b) (Art. 6-1, 6-3-a, 6-3-b) of the Convention. Article 6 para. 1 (Art. 6-1) states: "In the determination ... of any criminal charge against him, everyone is entitled to a fair ... hearing ..." Article 6 para. 3 (a) and (b) (Art. 6-3-a, 6-3-b)states: "Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, ... in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence." According to these provisions an accused has the right to be informed of the cause of his accusation, i.e. the acts with which he is charged, and of the nature of the accusation, i.e. the legal classification of the acts in question. The information thus provided must be adequate to enable the accused to prepare his defence accordingly, in particular to comment on the charges raised against him (see No. 10857/84, Dec. 15.7.86, D.R. 48 p. 106). In the present case the Commission notes that the applicant was clearly aware of the charge of abetment in tax evasion brought against him. In his administrative law appeal to the Federal Court he was able to comment thereupon. Furthermore, the applicant was fully aware of the charges brought against S. Thus, in first instance the applicant had already been fined on account of abetment in the tax evasion by S. In the ensuing proceedings before the Tax Appeal Commission, one of the applicant's arguments was based precisely on the assumption that S. had committed the tax evasion. The applicant subsequently used the opportunity to comment on these issues in his administrative law appeal before the Federal Court. The applicant has not shown in what respect his rights of defence were breached if, while being aware of the charges brought against both himself and S. as well as being able fully to comment thereupon, he could not comment on the outcome of the criminal proceedings instituted against S. As a result, there is no indication that the applicant did not have a fair trial within the meaning of Article 6 paras. 1 and 3 (a) and (b) (Art. 6-1, 6-3-a, 6-3-b) of the Convention. The application must therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention. For these reasons, the Commission, unanimously DECLARES THE APPLICATION INADMISSIBLE. Secretary to Acting President of the Second Chamber the Second Chamber (K. ROGGE) (G. JÖRUNDSSON)